ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K. H.
Defendant
T. Vogel, for the Crown
N. Gorham and H. Bajwa, for the Defendant
HEARD: June 14-21, September 9, 2021
JUSTICE S. NAKATSURU
A. INTRODUCTION
1K.H. is the father of five young children. He separated from the mother of four of them — Z.H., J.H., P.H., and L.H. — in June of 2017. Since separation, his relationship with the mother, N.A., has been hostile and fractious. There has been a custody battle. They have both made allegations of abuse of the children against each other. The authorities have been involved.
2Those four children had been living with K.H. during the week and spending three out of four weekends with N.A. That came to an end when these criminal charges were laid. Three of the children, Z.H., J.H., and P.H. are the complainants in the charges.
3At the time when the charges were laid, Z.H. was 11 years old, J.H. was 9 years old, P.H. was 6 years old, and L.H. was 3 years old. K.H. also had another daughter from another relationship, henceforth referred to as J.H., who was 11 years old. They all lived together with K.H. in a townhouse.
4K.H. is charged that he assaulted Z.H., his oldest daughter, with a belt sometime between January 1, 2018, to June 30, 2019. It is alleged he hit Z.H. with a belt in the basement of the home which left a scar on her stomach. There is also a forcible confinement charge against P.H. allegedly committed between January 1, 2018 and February 26, 2020, where K.H. is said to have tied P.H. up and strung her from the rafters of the basement.
5The other charges stem from an incident said to have happened on or about February 26, 2020. It is alleged that K.H. took all his children into the basement to question and punish them about missing money. He is charged with assaulting J.H. and P.H. with a wire or cable and assaulting P.H. such that he caused her bodily harm.
6Before I turn to the evidence, there are some important things I need to say.
7First, I have heard a considerable body of evidence about some alleged uncharged crimes and discreditable conduct on the part of K.H. For example, there is evidence that K.H. banged his children’s heads against a wall and that he struck K.H. and P.H. with a belt as well as a wire or cable. K.H. is not charged with these offences. Defence counsel did not object to the admissibility of this evidence. This evidence has some relevance to intent, animus, or the nature of the relationship between the children and their father: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.) at para. 102. This evidence also has potential significant prejudice as predisposition evidence. However, as acknowledged by defence counsel, given that this is a judge alone trial, the potential prejudice is much mitigated.
8I strongly emphasize that this evidence will not be used in any way to show that K.H. is the type of person that would commit the offences that he is charged with or that he has a general predisposition to violence. In my view, it is best to remain focused on the charges before the court and not be distracted by the other evidence of alleged criminal offences that he was not charged with. I make no specific findings regarding them.
9Second, each charge must be considered separately. No similar fact application was brought. Only evidence admissible to each charge will be considered on the Crown’s proof of that charge.
10Third, while the evidence of young persons must be assessed in the context of their age and maturity, this does not lessen the burden of proof on the Crown. Put another way, proof beyond a reasonable doubt is a stringent standard. It is no less stringent merely because we have young or vulnerable complainants.
11Fourth, K.H. has testified and denied the charges. Reasonable doubt applies to the assessment of credibility. Even if I do not accept K.H.’s testimony, his unaccepted evidence may raise a reasonable doubt. Even if it does not, the Crown must still prove all the essential elements of each charge beyond a reasonable doubt.
12Similarly, it is never a contest of credibility in a criminal trial. Just because I accept a complainant’s evidence, this does not mean the accused’s evidence must be rejected. All the evidence must be considered.
13In explaining my reasons, I will break down the evidence into discrete sections. However, let there be no doubt that I have considered the evidence as a whole.
14Before I get to the merits of the trial, an evidentiary issue must be decided. The defence wishes to tender evidence of the children’s statements in an unrelated sexual assault investigation into N.A. and “Kevin”, N.A.’s intimate partner at the time.
15I find the statements to be admissible for the following reasons.
B. THE ADMISSIBILITY OF POLICE STATEMENTS ABOUT A PRIOR UNRELATED SEXUAL ASSAULT INVESTIGATION INVOLVING Z.H.
1. Overview
16From July 2019 to November 2019, the police conducted an unrelated investigation into claims of abuse against N.A. and her partner, Kevin. It was alleged that N.A. and Kevin sexually assaulted Z.H. in the living room of N.A.’s home. There were other adults present. Amongst other things, Z.H. alleged that her mother and Kevin tried to insert a black object into her vagina. The police investigation concluded with a finding that the event could not have occurred partly because Kevin had not been around the children for more than a year. Z.H. eventually admitted to K.H. that she had inserted the object herself.
17At the end of this trial, K.H. sought to introduce video statements Z.H., J.H. and P.H. had given to the police during this sexual assault investigation. The Crown objected to the admissibility of these statements. The trial was adjourned to allow the parties to prepare and argue this issue. By agreement of the parties, the issue of the admissibility of these statements was argued at the same time as the final submissions on the merits of the case.
2. The Positions of the Parties
18K.H. submits that the statements given in the earlier investigation are admissible at this trial because they tend to prove that the prosecution’s child witnesses lack the capacity and moral responsibility to separate the truth from what others said to them or in their presence. In the earlier investigation, each child claimed that Z.H. had been sexually assaulted when she had not been. This leads to an inference that the children’s accounts were influenced by others. If so, the prior statements tend to support the defence position in the present case that the witnesses are incapable of separating the truth from what they have heard. This relates to a material issue at trial: whether the children have provided independent and accurate accounts of what happened to them, as the prosecution contends, or whether the similarity in their accounts is the result of extraneous influences, as the defence submits. Because the evidence is probative of a disputed issue at trial, the collateral fact rule does not bar its admissibility. Moreover, in this judge alone trial, there is no risk of reasoning prejudice and little time will be expended on the presentation of the evidence.
19The Crown submits the admission of the statements is barred by the operation of the collateral facts rule. The statements are collateral in nature and not relevant to a material issue. Credibility-at-large does not render collateral evidence admissible. The only potential relevance of the statements is to further impugn the general credibility of the children. Therefore, the statements would merely distract from resolving the main issues in this case.
20Furthermore, the Crown submits that the defence chose not to cross-examine the children on their videotaped statements. By not doing so, they have offended the rule in Browne v. Dunn. The children were given no opportunity to explain why they may have lied or been confused in the previous investigation. The admission of the statements at this juncture would be unfair to the witnesses and the prosecution.
21In oral submissions, the Crown modified their position on this second point and contended that rather than being a reason for exclusion, the failure of the defence to cross-examine the children should go to weight if the statements are otherwise admissible.
22Thus, I will deal solely with the issue of whether admission of the statements would be contrary to the collateral facts rule.
3. Summary of the Videotaped Statements
23It is not necessary to go into significant detail about what is found in these statements, but I will summarize them below.
24Z.H. gave two videotaped statements to the police during the summer of 2019. In the first, Z.H. told the police that her mother had brought a rotten, smelly, dark thing into her room. It was put in a pail in the downstairs washroom. Z.H. explained that her mother tried to put the black thing inside her private area more than once, but it did not go inside her. One time, her grandmother and her mother’s friend were present, and her grandmother tried to stop N.A. The black thing was hidden in the pail so Z.H. would not tell her father about it. Z.H. did tell her father and she got into trouble. Z.H. also talked about bubble baths that she and her siblings took. She said that her mother and her mother’s friend took baths with the children together. During the bath, Z.H. said her mother put the black thing in the tub so she would not smell good but she did not try to put it inside her.
25The second statement was given to the police and a CAS worker. Z.H. said that she showered secretly as her mother did not want her to shower. Z.H. said no one ever touched her private parts. Z.H. explained that sometimes N.A. put something rotten in her room in a plastic bag. She said that no one except her mother touched her but that was only on her chest with her hands. She said she had reported the incident to her doctor. Z.H. repeated that her grandmother stopped her mother and that her mother did this because she did not want her to smell good. The interview concluded with the CAS worker asking her to repeat what she had said earlier about Kevin, when he said he would throw Z.H. off the balcony or lock her in her room if she told her father.
26J.H. was interviewed by the police and the CAS worker on July 26, 2019. J.H. told them that he had seen his mother, Kevin, and other friends touch Z.H.’s private parts with their hands in the living room. They did not use any object. Z.H. was only in her underwear. Z.H. told them to stop. J.H. also told his mother to stop but she would not listen. This happened on the weekend, and it had never happened before. J.H. said they had done this to upset his father. About showering, J.H. explained that the children showered by themselves without adults although P.H. sometimes showered with Z.H. J.H. said he did not like Kevin because he was mean and he just sat on the couch, watched television, and did not do anything.
27P.H. also gave a statement to the police and the CAS worker on July 26, 2019. She told them that Kevin touched all three of the children’s private parts. P.H. screamed but no one helped. Kevin then “busted her ass”. She then said Kevin was the only one who would touch her and Z.H. J.H. had tried to call the police but Kevin put tape on his mouth and “busted his ass”. Kevin had put a broomstick in J.H.’s penis. She also said that Kevin used a broomstick or a belt and touched her privates. When asked about bathing, she explained that her mother cleaned her privates but no one else touched her there.
28The police ended their investigation without laying any charges. In part, this was because N.A. told the police that Kevin had not been a part of their lives in 2019.
29On November 21, 2019, doctors removed a black cone-like object from Z.H.’s vagina. K.H. advised that he was told by Z.H. that she had inserted this into herself. He contacted the police with this information.
4. Analysis
30The collateral fact rule prohibits the introduction of evidence for the sole purpose of contradicting a witness’s testimony on a matter that is not connected with a material issue in the case: R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466 at para. 17. There are several exceptions to the collateral fact rule including: proof of bias, interest or corruption; a prior inconsistent statement material to an issue in the case; a prior conviction; a reputation for lying or untruthfulness; and a physical or mental defect relating to the capacity of the witness telling the truth.
31In my opinion, the Crown makes a strong case that the statements about the alleged sexual assault are collateral. Fundamentally, the matters relate almost exclusively to the credibility of the complainants. Thus, the matters cannot readily be characterized as dealing with an essential issue that needs to be determined in this trial.
32Though I acknowledge the force of the Crown’s position, I admit the evidence. I find that there are several bases for its admission. They are tenuous. But they are sufficient.
33First, the defence position at trial is that the children have been influenced by others to give false or inaccurate evidence about their father assaulting them. The defence does not go so far as to pinpoint exactly the origin of that influence. It could be their mother. It could also be influence that the children exerted on each other. In other words, the defence position is that there was collusion amongst the children to allege the assaults against K.H. Thus, the defence points to the previous sexual assault investigation and the statements given by the children as a past example of collusion that makes the prospect of collusion at this trial more likely. The defence submits that this collusion is a material issue at this trial and thus, this evidence is not collateral.
34In R. v. Wilkinson, 2017 ONCA 756 at paras. 38 and 45, the Court of Appeal explained that actual collusion and unconscious collusion are to be treated the same way at the admissibility stage. Unconscious collusion happens when a witness is influenced by hearing another person’s version of the events. This affects their own perception and memory of the events: see also R. v. B.(C.) (2003), 2003 CanLII 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.) at paras. 40-41; R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.) at para. 77.
35As indicated, I am not totally persuaded by the defence argument. That said, on the question of whether the evidence is admissible, I find that there is a sufficient connection, both in terms of temporal proximity and context (i.e. the allegations of sexual assault were being made against a parent, although a different one), to find that the evidence is not collateral to the material issues in this trial.
36Second, even if the evidence were collateral, I am persuaded that it could fall within an exception to the collateral fact rule. I appreciate that it does not readily fall within the traditional exceptions, but the purpose for which the defence wishes to use this evidence is reflected in the principles behind the exceptions. On the defence’s account, the evidence can reasonably be construed as evidence of motive, bias, or interest. As such, the introduction of the evidence should not be prohibited by the collateral fact rule.
37Commentators have pointed out that efficiency may be the underlying rationale for the collateral fact rule. In this case, the admission of the evidence would not contravene this rationale. Put another way, the probative value will not be outweighed by the prejudice to the trial process: R. v. Strojny, 2019 ONCA 329 at para. 67. The evidence consists of four discrete videotaped statements. No witnesses will be called. The statements can simply be marked as trial exhibits. No confusion or distraction will arise by its admission in this judge alone trial. I see no unfairness to the Crown. The Crown is prepared to deal with the evidence, if admitted, by arguing it should be given little weight.
C. OVERVIEW OF THE POSITION OF THE PARTIES AT TRIAL
38The Crown submits that this case is simple. K.H.’s evidence should be rejected. His testimony was implausible, self-serving, and defied common-sense. It does not raise a reasonable doubt. On the other hand, the proof of the offences is overwhelming. Despite some inconsistencies in their evidence and the animosity that arose from the custody battle, the children all gave relatively consistent testimony about being abused by their father. No one else subjected the children to the assaults that resulted in the injuries verified by photographs and medical examinations. These injuries are strong corroborative evidence of that abuse.
39K.H. submits that the Crown has not proven the offences beyond a reasonable doubt. K.H. makes the following submissions.
40First, K.H. has denied assaulting his children. His testimony should be accepted. Moreover, the flaws in the Crown’s evidence are such that acceptance of the complainants’ testimony cannot be used to reject K.H.’s testimony. Even if not fully accepted, K.H.’s denials raise a reasonable doubt.
41Second, the acrimony in the relationship between K.H. and N.A. should cause serious concern that the children have been influenced, whether deliberately or not, to falsely accuse their father. N.A.’s influence behind these false allegations clearly exists. P.H.’s testimony illustrates this given her extreme anger towards her father. Her testimony simply cannot be believed. J.H. and Z.H. have also been influenced, and in particular, Z.H.’s testimony changed when by accident she overheard the evidence of her brother when he testified over Zoom. In sum, there is no question that N.A. talked to her children about the injuries she observed. The allegations of sexual assault that were investigated earlier show that the children lack the capacity and moral responsibility to tell the truth and that they are susceptible to collusion and influence.
42Third, the injuries to P.H. could have been caused by other adults or the children in the household, including J.H. They could have been incurred somewhere other than K.H.’s home. The amount of force used to cause the injuries cannot be established. The pattern of these injuries does not preclude these other reasonable possibilities.
43Fourth, the accounts given by the children are conflicting about the abuse. For example, sometimes the account is that they were lined up and beaten and other times they went one by one. The children’s testimony is also unsupported or conflicts with other evidence such as the photographic evidence of the basement or evidence of prior injuries inflicted by others.
44I will first turn to the evidence of K.H. I remind myself that the doctrine of reasonable doubt applies to my findings about his credibility.
D. K.H.’S TESTIMONY
45K.H. denied causing injuries to any of his children. Although he came from a different culture, he soon learned that certain types of corporal punishment were not accepted in Canada. As a result, during the time covered by the indictment, he would only resort to non-physical discipline such as grounding. He specifically denied ever using a belt, a wire, or a cable to strike his children. Neither out of anger nor for discipline.
46In addition, K.H. testified about past injuries suffered by his children that he observed but were not caused by him, which he believes were caused by N.A. or her then partner Kevin. He also testified about his custody dispute with N.A. and his dealings with the police regarding N.A. and Kevin’s past conduct — dealings that led to little satisfaction for K.H. since the authorities did not take action on his complaints.
47I have considered K.H.’s evidence carefully in the context of the whole of the evidence. For the following reasons, I do not accept K.H.’s testimony denying the assaults. Moreover, I find his unaccepted evidence does not raise a reasonable doubt. There is one exception to this. This relates to the count alleging unlawful confinement. I will expand on this later.
48On the positive side, K.H. testified calmly and was mainly responsive to questions. Overall, he struck me as a man who cares about his children. He has had to struggle to make ends meet. It was hard raising five children as a co-parent with whom the children spent the majority of their time. No doubt, there were frustrations and challenges. Despite clear reasons why he might express hostility towards N.A., his responses about his feelings toward her in his testimony were reasonably tempered.
49Also, K.H. was candid about using a belt for discipline before he became aware it was illegal. He denied ever using a wire or a cable for that purpose.
50K.H. brought photos of injuries the children had sustained in the past, which he said were caused mainly by Kevin and also by N.A. I appreciate that these photos can somewhat support and confirm his testimony.
51I also note that K.H. has a criminal record. But such a minor criminal record has no weight in my assessment of his credibility.
52All that acknowledged, there are good reasons why I reject his testimony and find it does not raise a reasonable doubt.
1. The Implausibility in K.H. Not Knowing of the Injuries
53K.H. was most careful in saying that he did not bathe P.H. or help her shower. It is obvious that if he did during the material week in February of 2020, he would have seen P.H.’s injuries. K.H. testified that it was J.H. and Z.H. — mainly Z.H. — that helped bathe P.H. in February of 2020. K.H. testified that he never saw P.H.’s back or legs exposed that month. He also testified he never helped P.H. put on her pajamas that month.
54I find this testimony to be implausible. To me, it was put forward to avoid any suggestion that K.H. would have known about those injuries. Even if I assume that K.H. did not see P.H.’s injuries in February of 2020, if it had been Z.H. or J.H. who bathed or showered P.H., I find it impossible that they would not have told their father about those injuries. The injuries were striking. They would have seen them. Moreover, I can readily infer that the injuries would cause P.H. pain and as a young child, she would say something about them. Some of the wounds would no doubt have bled. There is no doubt in my mind that P.H. would have told her father about them or K.H. would have otherwise come to know about them.
55K.H. emphasized that he had a good relationship with his children. He let them know they could come to him for comfort and support if they were ever injured. Yet I find it difficult to believe this and also believe that P.H., if she was injured at her mother’s or elsewhere, never revealed these stark injuries to her father. This is inconsistent with the type of relationship K.H. said he had with his children; one that he said he took so much care to foster. Even considering that a child might be reluctant to divulge injuries, I do not accept that P.H. would have suffered in silence if what K.H. said about his relationship with P.H. was true. I also observed that when he was cross-examined in this area, K.H. became somewhat nervous and evasive.
56The other possibility is that the injuries were caused when P.H. was in the care of her mother the weekend the complaints were made after K.H. turned over custody to N.A. However, there would have been little opportunity for N.A. or someone else to have caused the injuries at that point. N.A. picked the children up on Friday, February 28, 2020. The next day, she went to the police. It is very unlikely that those injuries were caused during that period. Moreover, while the expert who examined P.H., Dr. Kadar, could not date the injuries, using common sense, at least some of the injuries do not appear that recent. Finally, this possibility is not consistent with what the children or N.A. say took place.
57I find that K.H. did not tell the truth about this. This affected his credibility.
2. The Videos Made by K.H.
58K.H. took videos of his kids showing certain injuries they had suffered in the past. These videos were introduced into evidence and were marked as Exhibit 20. K.H. was not sure when he recorded them. He agreed that J.H. looked like he was seven or eight years old and P.H. looked four or five years old at the time. Therefore, this would be in 2018 or 2019. K.H. wanted to document these injuries as being caused by Kevin.
59In one video, K.H. asks P.H. what happened to her arm. She says that Kevin slapped her with a belt and scratched her and that it happened “last Thursday”. P.H. says their mother told them to say it happened at school. K.H. then questions J.H., who repeats what P.H. said in response to questions from K.H.
60Another brief video shows P.H. saying Kevin hurt her. This video is of poorer quality. K.H. filmed it in his living room around the same time but before the first video. K.H. denied coaching P.H. K.H. said P.H. was being unruly. K.H. testified that he noticed an injury on her leg at dinner. He just recorded it and took pictures.
61K.H. testified that his youngest son’s godfather told K.H. he needed to keep these records if it ever got back to him and someone claimed K.H. was the one who inflicted these wounds.
62I found these videos disturbing. Not because I believe K.H. that they document evidence of Kevin assaulting the children and of N.A. telling them to lie about it. It is because I find that K.H. put his children up to doing this.
63First, the fact that K.H. recorded the videos is unusual. I understand that things were not good between K.H. and N.A. I know that people sometimes do unwise things when in difficult circumstances. However, to record young children in this fashion reveals K.H. to be a single-minded person, oblivious to how this action might negatively affect his young children. This is especially the case because P.H. is nude in one of the videos (that video was sealed).
64I appreciate that K.H. never showed these videos to the police or otherwise used them until these charges came to court. However, this is puzzling given that K.H. was so willing to report other things to the police.
65A second disturbing thing about the video is that K.H. questions the children in a loud voice. Particularly at the end of the video. It strikes me as aggressive. K.H. explained in his testimony that was just how he normally sounded. I do not accept that. Even accounting for the fact that the formality of a trial may affect how one speaks, how he talked to his children was quite a contrast to his voice while testifying. His voice in the video was commanding and loud. Moreover, while some questions were open-ended, the whole tenor of the recording came across as pre-planned by K.H., as if designed for an ulterior motive.
66Third, P.H. looks terrified. She is wide-eyed. She is naked. She gives her accusation in what appears to be a rehearsed manner. She needs some prompting after her initial disclosure. She seems somewhat bewildered. Then J.H. relays what happened all in one go when it is his turn. J.H. says what he has to say in a halting manner. He also looks scared. It also looks rehearsed.
67Fourth, at the end of the video, just when it looks as though the recording is complete, there is an interesting exchange. K.H. asks J.H. and then P.H. in a loud voice if he told the kids what to say. He asks them if they are telling the truth. Interestingly, J.H. responds that his mom might lie about this matter. In my view, J.H. said this because he recognized that N.A. would deny the accusation — because it is not the truth. This whole exchange is very revealing.
68Moreover, comparing this question to his children to his purported reason for making the video, is illuminating. K.H. testified that he was only recording the video at the suggestion of his friend. If he were simply recording an assault that Kevin had actually committed, there would be no reason to ask the children whether K.H. had put the kids up to saying this. Doing this would only make sense if K.H. was in fact putting them up to it and concerned someone might level such an accusation at him.
69K.H. denied ever coaching the children. K.H. testified that if he had caused the injuries, it would make no sense for him to video record or take photos of the injuries. I understand that argument. But it also makes sense that he would do this just as an “insurance measure”, if it ever got out that he did cause the injuries.
70Even assuming he did not cause the injuries, I have little doubt that K.H. put the kids up to this and coached them to level an accusation against Kevin and N.A. I do not believe K.H.’s denial that he had no hand in coaching the kids. This part of his evidence and the cross-examination on it told against his credibility, both on this specific issue and in general.
71There are other aspects about this video evidence that I wish to address.
72The first is that P.H. was not shown the video. I understand she is young and may not have remembered it, but the defence did not let her comment on it. This decision not to allow P.H. to respond to the video must be factored in.1
73On the other hand, J.H. was shown the video. When asked in cross-examination if he was telling the truth, J.H. said he was not telling the truth because if he had told the truth, he would have gotten slapped by his father. J.H. testified that the truth was that K.H. was the one who inflicted those injuries on P.H.
74I accept J.H.’s testimony. I will later explain why I find J.H. credible. For now, this testimony provides a direct explanation for what is already apparent in the video itself: the children’s fear, the seemingly rehearsed nature of their statements, and why K.H. would ask the children if he had coached them. It all makes sense.
75I return to the question that was on its face puzzling: why K.H. did not take these videos to the police. The defence submits that the Crown theory that K.H. manipulated his children in the video is wrong. The defence argues that K.H. took other photos of injuries allegedly caused by Kevin and K.H. never went to the police with those either. Thus, it is argued, it is neither here nor there that K.H. never went to the police with the videos.
76K.H. himself testified that he did not report the injuries or hand over the video because he got tired of reporting such injuries and getting no results. He testified that the police told him that without a fresh open wound suffered by the children, the police could do nothing. The police officer said the system was outdated.
77First, I find it implausible that the police would have told him this.
78Second, I appreciate that K.H. documented other injuries that he believed were suffered while at N.A.’s place. I also appreciate that K.H. did not run off to the police with this evidence to complain. However, there is a significant difference between those photos and the videos in question. In the videos, the children are seen and heard saying Kevin gave them the injuries and hurt them. Although presenting the police with the photos would require them to take K.H. at his word as to who caused the injuries in the photos, the videos were direct evidence from J.H. and P.H. accusing Kevin of causing the injuries.
79I find it implausible that these videos are what K.H. purports them to be if K.H. did not take them to the police. The Crown cross-examined K.H. about the numerous other times when K.H. did go to the police. The evidence shows persistent behavior by K.H. in this regard. When contrasted with K.H. doing nothing with these videos, this lack of action makes no sense. I do not accept K.H.’s explanation that he felt since no one was listening to him, it was not worth a try.
80This lack of reporting belies his stated intention about recording the children. I find that K.H. did not report these incidents because it was likely that the videos themselves would raise more questions about K.H.’s behavior than have the effect that he wanted, which was to inculpate Kevin and N.A. K.H.’s true intent was to have them as insurance to deflect any suspicion away from him if child abuse allegations were made against him.
81The cross-examination on this area was effective. K.H. was evasive and implausible. I find it diminished his credibility.
3. Other Matters Relevant to Credibility
82Two other areas of cross-examination are relevant to my assessment of K.H.’s credibility.
83The first is K.H.’s partial, reluctant admission regarding the circumstances surrounding the alleged beating of the children on or about February 26, 2020.
84After questioning K.H. about the scar Z.H. had on her stomach, the Crown suggested to K.H. in cross-examination that he got mad at his kids in February of 2020 due to an incident involving K.H. trying to pay for a taxi after doing some shopping and finding out he was missing money. This suggestion tracked what the complainants testified was the thing that instigated K.H.’s anger that day and his beating of them. K.H. replied that given the timeline, this was not possible as he would not have been doing shopping at that time and the children would not have stolen his money. He then volunteered that the incident happened earlier2 when he left some money around and he found himself short of funds to pay the taxi that he had taken home. He agreed there was a dispute about the children stealing money.
85When pressed further about why he did not disclose this in examination-in-chief, K.H. again mentioned something about the timeline and it being earlier. He then admitted he did in fact talk to the children about the missing money, but he testified that he would not have gotten angry over it because it was just money. K.H. admitted that he questioned the children and they all denied taking the money. Everyone was in the basement, as they usually played there. K.H. first questioned Z.H. about the missing money and she showed him she did not have it. He then questioned J.H. and J.H. showed him she did not have it. He disagreed he disciplined J.H. in the basement. He then turned his attention to P.H. He confronted P.H. but she denied it. K.H. agreed he was upset as he was trying to pay for the taxi and he could not find the money he thought he had. He admitted that he believed that the children were lying. He was upset and frustrated but denied that it was enough to slap his kids. He just grounded them until someone told the truth. K.H. agreed that the kids telling the truth was very important to him.
86I agree with the Crown that it is peculiar this whole incident was not raised in examination-in-chief. At the end of examination-in-chief, K.H. was asked about whether he lined up his kids and struck them. He denied that. I would have expected that this would have been the time to bring up this incident. K.H. did not. Moreover, K.H.’s account of this came out rather grudgingly in cross-examination. It started with a hesitance to admit that there was a dispute over money at all. His explanation of the timeline being incorrect did not make much sense to me. Then, K.H. somewhat surprisingly admitted to the incident. Noteworthy is that aside from the timing of it and his denial of striking the children, K.H.’s testimony was the same as the children’s evidence about what happened when they were beaten, including the location of where he spoke to the children and how he questioned each one.
87I find this to be a partial admission of the circumstances of the alleged incident. This reluctant admission given under cross-examination diminished his credibility.
88The second area of cross-examination that diminished K.H.’s credibility was his account of running his single parent household with five children to take care of. I agree with the Crown that this account was implausible. No doubt, it is natural that any parent would want to portray themselves in a good light when discussing their care of their children, no matter how difficult the circumstances. Also, K.H. did not try to make himself sound perfect. However, his overall description of the running of the home struck me as self-serving, as it made it seem that given how well the home ran, there would be little reason for K.H. to totally lose his temper.
4. Conclusion
89K.H.’s denials of assaulting his children are rejected. His straight denials were not consistent with the circumstances as presented in the evidence. There were frailties uncovered in cross-examination. My assessment of his testimony alone leads me to this conclusion.
90In addition, except for one count, K.H.’s rejected testimony does not play any role in the Crown’s onus to prove the charges beyond a reasonable doubt.
91Although not necessary for this conclusion, another reason for not accepting K.H.’s testimony is my careful consideration of the whole of the evidence. My consideration of the Crown’s evidence provides additional reasons for rejecting his testimony. A careful and considered assessment of the complainant’s evidence can be a reason to reject an accused’s evidence: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.); R. v. R.A., 2017 ONCA 714. Of course, there can never be a reversal of the onus of proof or a watering down of the strict standard of proof beyond a reasonable doubt. Even if an accused’s testimony is rejected and does not raise a reasonable doubt, the Crown must still prove the charges beyond a reasonable doubt. But a considered acceptance of a complainant’s evidence is a valid reason to reject the evidence of an accused.
92I will now turn to the evidence of N.A. and the children.
E. N.A.’S TESTIMONY
93I must approach N.A.’s evidence with great caution. There are good reasons for this: (1) she has a motive to fabricate given she wanted custody of her children; (2) she admits her animosity towards K.H.; (3) their relationship since separation has been hostile with accusations of abuse going back and forth; (4) her recollections are not always the most reliable (for example, she had to backtrack on when P.H. told her that K.H. had hung her up in the ceiling)3; and (5) N.A.’s conduct in interfering with her children’s reporting of past complaints against her.
94Let me give an example. N.A. essentially admitted she may have gone to her children’s school to get them to retract past abuse allegations made against her. That shows her willingness to interfere in this way. On the other hand, I can understand such behavior. She denied the allegations made against her. I can see a parent being upset about that to the extent that they would try and get their children to say what they believe to be the truth.
95In other respects, she was forthcoming even when it did not paint her in a good light. For example, she admitted that she used a belt in the past in disciplining the children. I appreciate that K.H. also did the same. However, I am of the view N.A. came across more honestly in that regard.
96Occasionally, N.A. had a hard time understanding questions. But I find this was not evasion in order to avoid a question.
97All in all, through N.A.’s testimony – indeed, through K.H.’s testimony as well - I got a view of a very complicated and conflict-ridden family dynamic that, no doubt, has not been good for the children. N.A. has played a role in that.
98Despite the flaws in her testimony, one part of her evidence in particular that I accept as truthful and accurate is how she discovered P.H.’s injuries when she picked up the children from K.H. at the police station on Friday, February 28, 2020, as they had agreed to do when handing off custody before the weekend. K.H. made no mention of anything untoward happening with the children. On the subway ride home, P.H. was fussing and crying. She pulled up her pants and showed N.A. a mark. At the time, N.A. thought she may have fallen. When she asked what happened, P.H. said her dad did that. N.A. waited to get home before they talked more about it.
99At home, N.A. saw the injuries on P.H.’s legs. P.H. said her dad did that. Then, L.H. came by and said there were more on her back. N.A. took off P.H.’s shirt and saw further injuries on her back. N.A. asked P.H. why her dad would do that and told her it was not okay. P.H. told her what had happened. N.A. admitted that she was pissed. N.A. wanted to call K.H. but she did not as P.H. begged her not to. N.A. did not immediately call the police as P.H. feared K.H. would do something worse. P.H. was still in pain and the wounds looked fresh. During this conversation, N.A. and the children were in the living room. N.A. phoned her brother and got his advice. The next morning, on Saturday, February 29, N.A. took the children to 43 Division where they were interviewed on camera. The following Monday, on March 2, 2020, the children were examined by the Suspected Child Abuse and Neglect (“SCAN”) unit of SickKids Hospital. N.A. did not send the children back to K.H. He has not seen them since.
100Another important part of N.A.’s testimony is her denial that she caused the injuries to her children. Further, she testified that she did not see Kevin cause them injuries. The children were never left in the care of Kevin.
101The defence’s theory on this was that N.A. may have caused the injuries to the children to frame K.H. so that she could get sole custody of them. When accused by the defence that she may have had a hand in the injuries to P.H. or her other children, N.A. queried why she would do that if she wanted to have custody of her children. Sure as anything, she testified that if that were the case, she would lose them.
102I can accept that people can act irrationally or in anger in the moment. They may later come to regret what they have done. But I did find N.A.’s testimony compelling on this point. She would be taking a great risk in bringing the injuries to the attention of the police if she was the cause of the injuries. Yes, she could try and convince the children to blame their father. But they are young. Especially P.H. and L.H. When questioned by experienced police investigators, they may divulge that it was their mother who caused the injuries. Better if she just kept quiet if she was indeed responsible. Moreover, N.A. would have had little opportunity to cause the injuries and then craft a deceptive story that all her children would have to repeat.
103I find as a fact that N.A. did not cause the injuries seen on the children. It makes no sense that N.A. would cause the injuries and then immediately report the injuries to the police to gain custody of her children. It would be a significant risk to take hoping the children would be able to repeat the false story to the police and maintain that account even when asked questions. If that did not happen, she would then lose custody and risk going to jail. If this concocted plan to falsely accuse K.H. was N.A.’s design, it would have made more sense to take the time to ensure that the false story would stick with the children, instead of taking them to the police the morning after getting them back into her care.
104Finally, it is absurd that the children would lie about their father causing the injuries so that they could live with their mother if it was indeed their mother that was truly harming them.
105Yet, I know N.A. has talked to the children since the charges were laid. She admitted she has called K.H. bad names in front of her children. I have no doubt her feelings about K.H., understandable as they may well be, were communicated to the children and could very well have had some influence on them. This must be taken account when assessing her testimony as well as the children’s.
106If the Crown’s proof of its case depended on N.A.’s testimony alone, it would be dangerous to convict.
107Thus, it is important to carefully assess the evidence of the children.
F. THE VIDEO STATEMENTS TO THE POLICE
108First, I have some general comments about the video recorded statements admitted under s. 715.1 of the Criminal Code.
109The statements of the three young complainants to D.C. Gordon and D.C. Bianchi taken on February 29, 2020 are good evidence. The interviews are recorded well and fully show the children and the questioning with the police officers.
110The statements were taken the day after N.A. received the children back into her care. This timing means I should give the statements more weight. The children’s memories of what happened when in their father’s care were fresh at the time. The statements were taken before N.A. had any real opportunity to negatively influence their recollections about the events.
111I will consider those statements as part of the evidence of the complainants.
G. P.H.’S TESTIMONY
112I must exercise caution and common sense in assessing P.H.’s testimony. She is a seven-year-old testifying about events that happened when she was six years old or even earlier. The passage of time for someone of this age can have a greater effect on memory than an older child. Also, how a person of this age communicates evidence is not the same as how an adult would. Care must be taken in properly interpreting what she says.
113P.H. is a bright young girl with a remarkably independent character. For her age, she has quite a fiery attitude. I do not mean that in a bad way. She says it as she feels it. She is not shy. She was not intimidated by the trial process.
114P.H. has strong negative feelings against her father. Obviously, if the allegations were true, that would be a good reason for those feelings. Regardless, such powerful hatred felt by a young impressionable child may lead to statements or recollections that should not be given too much weight without exacting scrutiny.
115Also, as pointed out by the defence, P.H. does not want to be taken away from the care of her mother. Thus, she has a motive to please her mother and not say anything bad about her. Moreover, as I have found, N.A. likely has had numerous conversations about the custody dispute and her negative views about K.H. Given P.H.’s age, I am aware that these factors can have a strong influence on her.
116Understandably, for a child of her age, her memory was not always good. She was inconsistent at times. This does not mean that she was not telling the truth about the core of her allegations. But it was not always easy making sense of everything she said.
117About the February incident, P.H. testified that she showed her mother the injuries she got from her father on the train and at home. The Crown relies mainly upon P.H.’s statements to the police to prove what happened to her. P.H. testified that she told the police the truth.
1. P.H.’s Police Statement of February 29, 2020
118On February 29, 2020, P.H. was interviewed by D.C. Bianchi. P.H. promised to tell the officer the truth. She was very communicative and responsive in the interview, though she was only six years of age at the time. The questioning by the officer was not leading or suggestive. The officer was also fair. For example, the officer asked about things she did not like about her mom and P.H. readily said her mom slapped her hand and, in the past, she had hit her hand with a belt. P.H. also said that N.A. had hit her brother and sister. However, P.H said when her mom slaps her, she never gets any “boo boos”. She only gets “boo boos” from her dad.
119P.H. told the officer that her dad slaps her with a wire and she gets lots of “boo boos”. P.H. then showed the officer some injuries on her back and legs and said it was from her dad slapping her with a wire. When asked what happened, P.H. said her sister had accused her of stealing her dad’s money, although P.H. had not. Her sister J.H. had bought candy with it. When her father looked for his money and didn’t see it, he thought P.H. had taken it, so he started to slap her with the wire in the basement. The wire was “funny white”.4 No one else was down in the basement. P.H. felt sad. She also felt like she would faint when she was hit. Her dad then told her to go to her room and said she was grounded. P.H. was bleeding. J.H. and Z.H. saw the blood, J.H. cleaned up the blood from the stairs, and Z.H. helped her take off her clothes.
120When asked if her dad had hit her before that day, P.H. said she could not remember. Then she told the officer that her dad bangs their heads against the wall. P.H. said he also slapped J.H. and Z.H. with the wire. He hit J.H. once with the wire. But not the baby, L.H.
121When asked how they get punished, P.H. said her dad didn’t slap them anymore and just grounded them. However, she also said that he would probably still slap them if they did something wrong. P.H. described how her dad once put a sock in her mouth, tied her up on her feet, and then slapped her with a wire.
122P.H. then told the officer that J.H. was also in the basement when her dad thought they had taken the money. Her dad slapped J.H. with the same wire. P.H. saw J.H. crying and bleeding. The children also told each other they got beaten by the wire.
123When asked about how she felt about her mom, she said “nice”. When asked about her father, P.H. said “mean”.
124Overall, there are some internal inconsistencies in the statement. However, I do not find that unusual for a young girl of six.
125Inconsistencies and contradictions in a child’s testimony, particularly as to peripheral matters such as time and location, must be assessed in the context of their age and unique developmental stage. Courts cannot expect the evidence of a child to have the same cohesive quality as that of an adult: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48; R. v. H.C., 2009 ONCA 56 at para. 42.
126What is striking about her account is its core consistency with her visible injuries and the accounts of the incident given by her brother and sister.
127There was no reluctance on P.H.’s part in attributing these injuries to K.H.
2. P.H.’s Police Statement of June 9, 2020
128D.C. Gordon interviewed P.H. again on June 9, 2020. She promised to tell the truth. In this statement P.H. said she had not seen her father because he beats her. She described how K.H. once hanged her up with a wire by the ankles and then he got another wire and started to beat her. He hit her on her feet, back, and butt. She was bleeding and her sister Z.H. had to help take off her clothes. Like the missing money incident, this also happened in the basement.
129When asked if anybody saw or heard this beating, P.H.’s response was confusing. She talked about everyone getting beaten, her father smoking, and money. She then said no one else saw it because her father sent her upstairs.
130When asked if she told anyone, P.H. said she told her teacher. She then said she told Z.H. and J.H. as they were upstairs when it happened.
131The interview ends with P.H. saying she was hungry and the officer going to look for something for her to eat.
132Looking at this statement, I did not find it as compelling as the February 29^th^ statement. The June 9^th^ statement was taken months after the February incident. Therefore, P.H. had not lived with her father for months. Her memory would be adversely affected by the passage of time. Moreover, she had been exposed to her mother and her animus to K.H. for that same extended period. Finally, there was an unrealistic quality to some of her answers.
3. Other Evidence P.H. Gave At Trial
133In examination-in-chief, P.H. was taken through some photos. She identified the belts and wires that her father used. She testified that after her father injured her in the basement, J.H. and Z.H. took care of her. She did not recall if J.H. was there. She was also asked about other things in her police statements. Sometimes her recollections and her motivation to recall were better than at other times.
134Cross-examination was not easy for the defence. Mr. Gorham admitted this in submissions. Nevertheless, the defence went through areas of questioning supporting their position that I should not rely on P.H.’s testimony. The defence points out that P.H.’s open hostility to her father makes her overall testimony suspect. Her fear of being taken away from her mother presents another motive to lie.
135P.H. also admitted that her sister J.H. caused her some injuries thus presenting another source of the marks that P.H. had.
136Finally, P.H. has been inconsistent in her testimony and in her recollections. For example, before testifying, when P.H. met with the Crown in preparation, she made statements to the Crown about her father hitting her with a broom and punching her and the other children in the stomach. These assaults had not previously been mentioned by her.
137I agree with the defence that looking at P.H.’s testimony as a whole, it would be highly problematic to convict on her evidence alone. That said, it does not stand alone, as I will show.
138For the moment, I make the following conclusions about her evidence.
139P.H. denies that the injuries N.A. observed on February 28, 2020 were caused by her mother. P.H. testified that N.A. only beat her with her hand, and that N.A. only did this a year ago when she was not behaving.
140P.H. was also asked about whether others caused her injuries seen in the photos taken after the alleged February 26^th^ incident. She denied they did. She was asked about her mother hitting her with a belt before or around the time of the injuries. P.H. denied that.
141I appreciate that this is somewhat inconsistent with N.A.’s evidence, where she admitted that she had in the past struck all her children with a belt to discipline them. However, I see nothing disingenuous about P.H.’s testimony. In my view, P.H. simply does not recall that happening. I note in her police statement she does mention that her mother had used the belt before. By trial, sufficient time had passed whereby her memory of that event may have been affected.
142When asked about her sister J.H. causing any injuries, P.H. testified that she did. She also answered that J.H. hit her with the wire on her ear and a bit on her stomach. When asked if other injuries shown by the Crown in the photos were caused by J.H., she said only some were She said her dad and her sister caused injuries that left marks, but her dad caused most of them. She pointed out a scar on her right arm as an example of an injury J.H. caused her.
143P.H. in re-examination said she could not hear counsel when questioned in this area as she was “acting up.” When asked if J.H. caused any other injury than her right arm, P.H. definitively said no.
144In my opinion, it may well be that J.H. has struck P.H. in the past and may have even hurt her. I do not find that so implausible amongst siblings of that age. However, I find that J.H. did not cause the significant injuries shown in the photos taken of P.H. after she reported them to the police on February 29, 2020. Fundamentally, P.H. has not accused anyone other than her father of causing these injuries. This slight waver in cross-examination, re-visited in re-examination, is of no moment. I do not find it a reasonable possibility that her sister J.H., who was only 11 years of age at the time, would physically be capable of inflicting these numerous injuries.
145There remains to be considered P.H.’s anger at and extreme dislike of her father that was quite evident in her testimony, her desire to stay with her mother, and the frailties in the substance and presentation of her evidence. In my opinion, these things can be partially explained by her age. They can also be explained by normal reactions of a child who has been abused by a parent. All this acknowledged, it does make it difficult to accept her trial testimony.
146While some of these factors were present in the statement of February 29, 2020, I find they did not affect the truth and reliability of what she told P.C. Bianchi. P.H.’s police statement was much more recent to the events than her trial testimony. She did not display the kind of overt hostility to her father in that statement that she displayed at trial. Her account came across as more consistent and natural. In my opinion, the most credible and reliable evidence we have from P.H. is found in the February 29, 2020 statement.
4. P.H.’s Statement to Police During the Sexual Assault Investigation
147In dealing with the weight of this evidence, I will draw some conclusions that are applicable to all the children. Then I will focus on each child.
148The defence argues that the evidence about the alleged sexual assault is important. The significance of this evidence does not lie in the fact that the children said something untrue in the past. Rather, the evidence sheds light on the capacity of the children to understand their moral responsibility to tell the truth and to separate their independent evidence from what they have been told. The defence submits that during the sexual assault investigation, which took place six months before the alleged offences before the court, the children made similar allegations in statements where they promised to tell the truth, and the allegations are demonstrably false. This tends to prove the children are incapable of providing an independent and truthful version of the events.
149I do not accept this argument.
150First, the defence uses the term “capacity” in reference to the children’s moral responsibility to tell the truth. This is wrong. There is no live issue about the mental “capacity” of the children to understand what it means to tell the truth based on their age or mental development. No issue was taken with respect to the competence of any of the children to testify. No expert evidence was called on this point. Rather, the issue raised by the defence is about whether the children are willing to abide by any moral and legal imperative to tell the truth. Put simply, the defence argues that because the children did not tell the truth in circumstances where one would expect them to — the sexual assault investigation — they are now not telling the truth in making these allegations against K.H. Whether that is a result of intentional influence or inadvertent collusion, the attack is fundamentally on the children’s credibility.
151Second, I am far from convinced that the children did lie or collude during the sexual assault investigation. It is a reasonable possibility that the children did witness or experience something that happened between Z.H., N.A., and Kevin that they interpreted, given their age and the circumstances, in the manner that they expressed to the police during their interviews. This does not mean that they made up out of whole cloth what they said or that they colluded. Basic features of what they told to the police could very well have been true. For instance, something did happen in the living room of their mother’s home with other adults present.
152Third, while the defence submits that these sexual allegations were demonstrably false, I cannot conclude that based upon the evidence before me. What I do know is that the police did not lay any charges against N.A. or anyone else. It could well be that they lacked the reasonable and probable grounds to do so based upon the totality of their investigation including their consideration of a denial of wrongdoing by N.A. There could also be other reasons for it. In sum, not laying criminal charges does not mean that the allegations were demonstrably false. On this point, I note that in cross-examination, Z.H. did not recant the truth of the statements she gave to the police during the sexual assault investigation.
153Fourth, while I can infer that the children spoke about this event amongst themselves — if it occurred, it is hard to imagine they would not — I cannot say when, how much, in what detail, and whether the circumstances would amount to “collusion”, conscious or unconscious. I cannot say whether this had any influence on the accuracy or the truth of their statements to the police during the investigation. P.H., J.H., and Z.H. were not questioned about those details. It would be speculative to make findings in that regard without more evidence.
154Fifth, the circumstances of the alleged sexual assault are very different from the allegations against K.H. I was not convinced that the statements were so collateral as to be inadmissible; nonetheless, there remains an inherent collateral quality to them. The fact that the sexual assault allegations were unfounded does not materially assist me in determining the charges against K.H. Even assuming that the children were influenced by someone or influenced each other, this does not mean they would create an entirely different set of false allegations against their other parent. If the allegations were against the same parent, there would be a greater connection. Moreover, these assault allegations are very different than the allegations in the sexual assault investigation. The latter dealt with the insertion of a black object. Recollections of what happened varied from child to child. In this case, the assault allegations are simple and straightforward. There is core consistency between the children.
155These factors lead me to conclude that the police statements given during the sexual assault investigation involving Z.H. should be given little if any weight in terms of assessing the credibility of the children.
156Dealing more specifically with P.H.’s statement to police during this investigation, I observe that she was not cross-examined on any answers she gave to the police in the July 26, 2019 videotaped statement. She was not even asked about the sexual assault allegations. P.H. was not given any opportunity to explain any points upon which her credibility has been attacked due to the introduction of this statement. As a trier, I have not been given any further information that such questioning might have revealed if the defence had asked her about it. It would not be right to say that the videotaped statement given to the police adversely affects my determination of her credibility when, had she been questioned, she may have been able to explain. This is another reason to give this evidence little weight in assessing P.H.’s credibility.
157Moreover, P.H.’s videotaped statement is replete with descriptions that are on their face fanciful. However, she was a younger child when that statement was taken. The fact she was willing to say these things to the police at that time, given her age, does not lead me to totally dismiss her testimony regarding being assaulted by K.H. when she was older. As noted, I will simply treat it with caution.
5. P.H.’s Injuries and Dr. Kadar’s Opinion
158The photographs taken of P.H. on February 29, 2020 by P.C. Anderson are significant confirmatory evidence. They were taken relatively close to the time it is alleged K.H. assaulted her. Looking at the photos, the injuries look relatively recent.
159Dr. Kadar’s expert reports were filed on consent and he testified to the various findings he made from examining the children. The photos taken at the SCAN unit on March 2, 2020 and the examination done by Dr. Kadar on that day both confirm P.H.’s injuries. Dr. Kadar noted:
There were 25 injuries on her back, arms, and thighs.
The injuries included patterned curvilinear marks, linear marks, and the observation of dried blood on her left lower back.
The number and extent of the bruises would be unusual for typical accidental injury and was concerning for inflicted injury.
Patterned bruising is usually the result of impact with an object and is not typically associated with bleeding disorders. The patterned bruises documented on P.H.’s left leg and thigh and on her right medial thigh were the result of multiple forceful impacts with an object(s) with a straight/linear edge.
The bruising on P.H.’s legs and back could have been the result of multiple forceful impacts with a length of rubber coated cable.
160Leaving aside Dr. Kadar’s opinion on causation for the moment, I will say this. The injuries are not the result of an accident. Just using common sense, they look like injuries inflicted upon the child by someone. When assessed with P.H.’s testimony, they just make sense. The pattern of bruising, abrasion, and injury, which shows parallel lines, are consistent with a whipping by a wire or cable. Some of the wounds are healing. But they are not completely healed. This strongly confirms P.H.’s testimony. I can come to this conclusion independent of any reliance on Dr. Kadar’s testimony about what in his view caused the injuries.
161When I do turn to Dr. Kadar’s testimony, I find he was a very fair expert. He gave probative opinion evidence. Dr. Kadar opined that P.H.’s injuries were “pattern injuries”, which occur where there is an outline or a contour of object on the skin or the injury pattern repeats itself. He concluded that the injuries were compatible with the history related by P.H.of being struck by a wire or a cable. He did not come to this conclusion by the appearance of the injuries alone but also considered the history provided. His opinion that an object caused some of the injuries was based on the frequency of the markings and their appearance as if shaped by the contour of an object. When asked about the strength of his opinion, he said that while he could not exclude other possibilities, the skin findings absolutely supported P.H.’s disclosure. In his view, while each individual marking could be debated, the totality of the markings was consistent with P.H.’s disclosure.
162When asked about the timing of P.H.’s injuries, Dr. Kadar could only give broad timelines from his own clinical experience and could not date the injuries to a specific number of days from the disclosure. In his opinion, the injuries could have been inflicted within the previous week given that the bruises and abrasions seen were compatible with that period. However, the injuries were not unique to that time frame; although a week was a reasonable timeframe, it could equally be longer as there were too many variables to consider.
163Nothing in cross-examination undermined Dr. Kadar’s evidence.
164One area touched upon in cross-examination was whether the bruising or hyperpigmentation could be caused by a bleeding disorder. Dr. Kadar testified that a patterned injury could not easily be explained by a bleeding disorder. I note that the testimony of K.H. lends support to a finding that P.H. did not suffer from any bleeding disorder. Thus, I find as a fact that these marks were not caused by a bleeding disorder. Given their grouping and their nature, it would defy common sense that they were caused by a bleeding disorder.
165The same conclusion can be made with respect to eczema that was suggested in defence questioning. I find that the markings were not caused by scratching due to eczema.
166Taken together, the nature of the injuries and Dr. Kadar’s opinion evidence strongly confirm the testimony of P.H.
H. J.H.’S TESTIMONY
167J.H. was in Grade 5 when he testified. J.H. adopted his statement to the police given on February 29, 2020.
1. J.H.’s Police Statement of February 29, 2020
168J.H. was nine years old when he gave his statement to D.C. Bianchi. J.H. promised to tell the truth. Overall in his statement, J.H. comes across as honest with accurate recollections.
169J.H. said he felt good while with his mom. He did not like it when she was rude to him when he did not listen to her. When that happened, J.H. got sent on a time out. His mom did the same to his sisters and brother.
170When asked if he liked living with his dad, J.H. said he felt okay. When asked what he liked and did not like about living with his dad, J.H. replied that when he did well in school, he got what he wanted. His dad also gave him his favourite foods even when J.H. was bad. J.H. did not like it when he had to do most of the chores.
171When asked if there was anything else he did not like about living at his dad’s, J.H. replied that he did not like it when his father slapped him and his siblings with the wire. J.H. also said that K.H. slapped him with a belt on his hands and arms and that his skin felt like it was “gonna burst”. The belt was long and black, with a silver part at the end. When asked about the pain, J.H. described it as “10/10”.
172When asked about the last time he got slapped, J.H. said it was on the Tuesday or the Wednesday of the week he gave his statement. His dad came home with the groceries and wanted to pay the taxi driver but could not find his money. He questioned the kids about the missing money. They did not know anything about it. His dad sent them all to the basement, except for L.H., and he slapped each of them with a white wire, with P.H. being last. He asked them where his money was. J.H. said she had taken it. J.H. got slapped on her back and legs. When his dad was done, P.H. was bleeding on her back and legs. J.H. had to clean the blood on the steps and a bit in the living room. He also cleaned up some more a couple of days later. J.H. just saw the marks and did not see his dad hit his sisters.
173J.H. did not tell anyone about getting hurt. He had no marks.
174J.H. also told the police that his dad slapped him and all of his siblings, except L.H., with a belt. Other than the incident in the basement, he did not see his dad do anything to his siblings other than a time out. J.H. also said that his sister J.H. slammed his head on the window. His dad sometimes apologized for slapping them for things when they didn’t do it. His dad said to never tell their mom. When asked what his dad looked like, J.H. said he looked like a “scary man”.
175Overall, I found J.H.’s statement to be compelling. He tells it plainly and without artifice. He does not seem hostile to his father; rather, he tells it like he recalls it. I found it to be a most probative statement.
2. Other Evidence J.H. Gave in Examination-in-Chief
176J.H. testified that K.H. hit him with the wire on a number of other days but he could not remember how many.
177J.H. testified that when he was hit with the wire on the Tuesday or Wednesday of the week he gave his police statement, he did not bleed and he just had bruises.
178There were photos taken of J.H. at the hospital after the incident when he went with his family. There was a photo of a bruise on his side. J.H. testified he thought he had gotten into trouble at school and his dad took him to the basement and slapped him with a belt or a wire. This was not the February 26^th^ incident; it took place two or three days beforehand. The marks on his back were incurred close to that time, within a week of when he spoke to the police on February 29^th^. Other marks on his leg were made by his sister J.H. when he got burnt by an iron. Later in cross-examination, J.H. said he thought the leg injuries happened during the same incident regarding the missing money and that he had forgotten that he was also whipped on the legs as well as the arm.
179At the end of his examination-in-chief, when asked about his feelings about his father, J.H. had conflicting ones. He loved his father but did not like living with him and did not like when he beat him. J.H. admitted he missed his father a little bit.
3. The Cross-Examination of J.H.
180J.H. was cross-examined on the February 26^th^ incident. J.H. testified that his father hit him hard 15 or 17 times in the basement. It hurt a lot. He got hit on the arms and hands. None of the slaps made a mark or he did not remember marks; he did not know which.
181On this point, I accept that J.H. may simply not remember there being marks. The examination conducted by Dr. Kadar does reveal some marks that would be consistent with the history of this assault. That said, I appreciate that J.H. points to other beatings that may have caused marks on his body. He has not been consistent about that.
182J.H. testified that P.H. was in the basement when they were hit by the wire. J.H. said the actual wire was not plugged into a wall or hanging from the ceiling; it was in a box and he did not know what it was attached to. K.H. whipped P.H. and Z.H. around the same time with the same wire, but again, not a wire hanging from the ceiling. They were all in the basement in the area where they kept toys, except for L.H., and stood in a line as K.H. whipped each of them in turn. K.H. hit J.H. first, next Z.H., and then J.H. On this point, in re-examination, J.H. was taken to his police statement in which he said he did not see his sisters being hit and that he just saw the marks after. J.H. agreed his memory would have been better at the time of the statement than it was at trial.
183In cross-examination, J.H. said P.H. was not tied up by her ankles or hung up from the ceiling and he was never told about something like that happening.
184J.H. was questioned about some of the photos taken of his scars and marks. Just as an example, there is the photo of the mark taken a few days before the February 26^th^ incident. J.H. testified he never told anyone about getting hit by his father on that occasion. J.H. was not clear about what caused his father to cause that mark, but he believed it was something about forgetting to carry out the garbage.
185J.H. was not consistent about the marks that were in the photos. In my view, J.H. was doing his best to recall the events but they were not clear in his mind. This led to some variability about the circumstances that led to the marks and when they were caused. I find that this is not unusual given his age and the circumstances where the past events blended together. One thing he was not uncertain about was his father hitting him on the date where they were all taken into the basement.
186Absolute precision as to the details of an alleged offence is unrealistic and unnecessary. As noted by Justice Wilson in B.(G.), “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it”: at para. 48.
187J.H. initially denied that his mom hit him with a belt. However, he then admitted that he was worried he would be taken away from her if he ever said that. When pushed further in cross-examination and asked whether his mom ever hit him with a belt, he answered “sometimes”. He denied that Kevin ever did bad things to him like hitting him or touching him. When told his mom had admitted to hitting him with a belt, J.H. said that he was not standing up for his mom, but he really did not remember his mom doing that. In my opinion, his testimony on this had the ring of truth. I accept that he really does not remember. This questioning does not negatively affect his credibility.
188J.H. testified K.H. had been beating him with a belt or a wire since he was in Grade 2. It happened for at least a year before J.H. went to the police.
189In cross-examination, J.H. was shown the video marked as Exhibit 20 in which P.H. and J.H. accused Kevin of slapping P.H. J.H. testified that he was lying when he said on the video that Kevin had hurt P.H. and that their mom had asked them to lie and say it happened at school. J.H. testified that it was actually K.H. who had injured them. He was afraid that if he told the truth he would get slapped with the belt in the basement. I appreciate demeanour has little value in assessing credibility. That said, I was struck by the sincerity and plainspokenness of J.H.’s response when asked about the video. J.H.’s explanation came out spontaneously without any hesitation or need to think about his answer. It was compelling. This fits with my own view of the video that I set out earlier in these reasons. I accept J.H.’s evidence on this completely.
190The defence submits that J.H.’s behaviour on the video undermines the suggestion that his father was putting him up to it. J.H. intervened when K.H. was questioning P.H., prompting his father to say J.H. would have to wait his turn. I do not see J.H. doing this as being due to his earnest desire to tell the truth. To me, it seems to come from an eagerness to do what his father wanted him to do.
191The defence also submits that by the time J.H. was asked about the video in court, he had already been under the influence of N.A. for some time and that she would have told J.H. that she would lose care of the children if he admitted that she or Kevin, while under her care, caused any injuries. I reject this. Again, it makes no sense that J.H. would want to be under N.A.’s care if she had inflicted such injuries in the past and the other option would be returning him into the care of a father who had never been violent to him before.
4. J.H.’s Injuries and Dr. Kadar’s Opinion
192Dr. Kadar examined J.H. He concluded the following:
There were eight injuries on his back, face, arm, and leg.
Some of the injuries were linear (left side of his back, left cheek, right upper arm) or had a particular discrete shape (curvilinear/U-shaped mark on his right forearm and three circular marks on his right leg). The U-shaped mark would be compatible with a straight linear object like a wire or a belt, depending on its specific shape and dimensions.
It is uncommon for accidental marks or scars to present with a discernible shape or pattern. These sorts of patterned markings are usually the result of contact with a similarly shaped object.
Based on the history provided, some of the marks are compatible with inflicted injury by a belt or cable. The end of a cable could be responsible for the skin loss.
The injuries could have occurred within a week of J.H.’s examination, but also potentially within three weeks or further out. The injuries had undergone a degree of healing over time.
193Dr. Kadar opined that overall, the injuries were compatible with J.H. being struck with a wire.
194These findings support J.H.’s testimony.
195The defence submits that J.H. attributed one mark to the beating, but the photographic evidence produced by the defence shows that he suffered that particular injury before the February 26^th^ incident.
196On this point, I agree with the Crown’s submission. Although J.H. may be incorrect about the timing of an injury, it does not undermine his clear and consistent position that he was recently abused by his father with a wire or cable. As Dr. Kadar observed, J.H. had multiple injuries. He had three circular/oval shaped markings on his right knee joint that were compatible with a cable. N.A. also testified that J.H. was complaining about his knee on the weekend of February 28^th^. She too observed injuries to his knee. The fact that J.H. may have had visible injuries from other assaults and has been inconsistent about them, does not undermine his clear and consistent testimony that he was beaten by his father on or about February 26, 2020, in the basement of the home.
5. J.H.’s Statement to Police During the Sexual Assault Investigation
197Unlike his sister P.H., the defence questioned J.H. about the alleged sexual assault on Z.H., and his police statement. J.H. recalled going to the police and giving a statement. However, J.H. could not recall telling the police that he saw four people, including his mom and three friends, in the living room holding Z.H. down and touching her private parts. When asked about some of the things he had told police — namely, Z.H. only having her underwear on, Z.H. trying to scream, and J.H. trying to scream too but his mother covering his mouth — J.H. said this was all false and that he really did not remember saying those things.
198For similar reasons given when dealing with P.H.’s statement to the police, I do not attribute much weight to this statement.
199I do not find that J.H. was being evasive. He was never shown the statement and thus was not given a chance to refresh his memory. To me, he truly did not remember saying those things to the police.
200When he testified, J.H. denied ever witnessing the things he said in his statement. There is no doubt that is a contradiction. Yet, I do not find it so contradictory that it affects my view of his evidence about the criminal charges. It may well be that he no longer remembers the events he told the police in the sexual assault investigation. It may well be that he does, but out of misplaced desire not to say anything bad about his mother, perhaps out of fear of being taken away, he is reluctant to admit it. However, this does not generally undermine his testimony. It is a natural reaction on the part of a boy his age and in his circumstances. Moreover, as noted, this sexual assault investigation has little connection to the charges faced by K.H. and lends little support to the defence theory of collusion. When it comes to the criminal charges faced by K.H., J.H. was quite capable of separating truth from what he heard from others.
I. Z.H.’S TESTIMONY
201Z.H. was 12 years old when she testified. Clearly Z.H. has some trouble communicating. Z.H. is shy. She often stutters. She hesitates in answering questions. K.H. testified that though she has not been formally diagnosed, Z.H. has always worked at a slower pace, is delayed, and has challenges. However, K.H. testified that Z.H. can say what she wants if one is patient with her. After hearing her testimony, I agree with her father’s assessment.
202Z.H. testified that she no longer lived with her father because she was not taken care of or eating properly at his place. She liked it there when things were quiet and there was no screaming. She also liked living with her half-sister J.H. They were the same age. Sometimes they would fight but they would only hit each other with their hands.
203Z.H. recalled the family being taken to the police station because P.H. had scars. The Crown showed her the statement she gave at the police station. Z.H. testified she had told the truth to the police.
1. Z.H.’s Police Statement of February 29, 2020
204At the time of the police statement, Z.H. was 11 years old. She promised to tell the truth to D.C. Gordon.
205Z.H. talked about the rules at her parents’ homes. Her father mostly grounded the children when they broke the rules. Z.H. behaved and followed the rules. She kept her room clean. Sometimes K.H. would slap the kids with the belt. Z.H. saw P.H. getting slapped once in the basement with the belt.
206When asked about a recent time P.H. got into trouble with her dad, Z.H. said that on February 26, 2020, her dad thought someone had stolen his money. At first he thought it was Z.H., and she proved it was not by emptying her bag and showing him there was nothing in her room. Then her dad thought it was J.H. or P.H. J.H. got sent upstairs and P.H. stayed downstairs in the basement. When P.H. said she did not take the money, from upstairs, Z.H. heard P.H. getting beaten by the wire and screaming. Z.H. went downstairs. She tried to get her dad to stop but he would not listen. Z.H. saw him beating her with a thin beige wire. The wire was normally hooked up to the basement ceiling. Z.H. was secretly recording her dad on her phone, but she did not know if her dad found out and deleted the recording. She helped P.H. get dressed after the beating and watched over her that night. Z.H. saw some marks on P.H.’s legs and back.
207That was the first time Z.H. saw her dad use the wire. Z.H. had never been beaten with the wire. However, her dad had hit her before with a black belt, which had a silver buckle and was hung up in the basement on a wire, as well as with his hands. Z.H. could not recall the last time she was beaten with the belt, but she thought it had been some time ago, when her school called her dad because Z.H. was defending herself from other kids. Z.H. thought she was in Grade 3 or 4 at the time. Z.H. pointed out to D.C. Gordon the spot on her stomach where she got hit. It bled and it took a few weeks to heal. The scab started to come off and it started to bleed again. It left a scar. She did not tell anyone as she did not want to get slapped.
208After the first police interview, Z.H. came back a few minutes later to give an audio statement because Z.H. had forgotten to tell the officer about her dad banging the back of their heads on the wall by the steps when they did something wrong. The last time she recalled this happening was when she was in Grade 5.
209I will say this about Z.H.’s police statement. She came across as an honest and sincere child who behaved younger than her age. She answered spontaneously and naturally. Her answers made sense. She showed no guile in what she was telling the officer.
2. Z.H.’s Testimony at Trial
210Z.H. testified that on February 26, 2020, K.H. told all the children to go to the basement. He was looking for his money and got mad that the children were not taking him seriously and sticking up for each other. Z.H. said she and her siblings were lined up and hit one by one. She saw J.H. get hit three or four times, mostly on the legs and hands. She could not be sure, but she thought J.H. was hit three or four times. Z.H. testified that she got hit a couple of times on the legs, but that K.H. did not really hit her.
211Z.H. was in her room when she heard P.H. screaming. Although she did not see it, it sounded like P.H. was getting hit by the wire. Z.H. got her phone from the LCBO bag where she kept it. Afterwards, Z.H. and her siblings helped P.H. up the stairs from the basement and then up the next flight of stairs up. Z.H. had to help P.H. change her clothes because her pajamas had a lot of blood on them. At that point, Z.H. saw P.H.’s injuries.
212P.H. asked them not to tell not anyone about the marks. However, Z.H. told her mom what happened on the Friday night before the police statement.
213At the end of her examination-in-chief, when Z.H. was asked about her feelings about her father, they were clearly mixed. She loved her father and said she missed him. But she also did not want to see him again.
214In cross-examination, Z.H. denied that her mother or Kevin had ever hit her with a belt or with their hands.
215Z.H. testified that she did not see K.H. hurt P.H. in the basement but just heard her screaming. I recognize that this is at odds with her police statement. She was not confronted with this statement and it may well be that she just misspoke to the police or that she was not careful in how she expressed herself. Given what I have seen of Z.H. and her communication style, this is likely.
216In her police statement, Z.H. also did not mention the kids being hit one by one. When asked why not, she testified that she had wanted to say something but could not remember at the time. She agreed she just recently remembered but said that no one helped her to remember.
217Z.H. also testified that, before she gave her statement to the police, she heard P.H. and J.H. talk about what had happened while they were at the station. She mostly heard P.H. talking to an officer and heard her tell the officer that they were lined up. She testified that she forgot about it in her police statement as it did not go through her mind at the time.
218I accept Z.H.’s explanation. Looking at the video statement, Z.H.’s telling of what happened to her and her siblings that night was not linear. She went off topic at times. She was distracted by other things. In addition, some of the police interview focused on what had happened to her. However, what she did tell the police was not inconsistent with her testimony in court. It just omitted the detail of being lined up one by one.
219I also appreciate that Z.H. testified that during this Zoom trial she accidentally overheard J.H.’s testimony when she walked by the room where he was testifying. However, it did not strike me that she heard much of it.
220Even if Z.H. is wrong about exactly what happened that day, I find that she is not being dishonest about it. It could well be that the passage of time and what others said have influenced her recollections of who was in the basement and how the beating actually happened. However, the core of her testimony is unshaken. K.H. was angry about the missing money, he questioned the children about it, he assaulted them, and P.H. was seriously hurt. The part of Z.H.’s testimony, confirmed by P.H. and J.H., that rings very true is how P.H.’s siblings helped her up the stairs and how Z.H. helped P.H. change out of her bloody clothes. I fully accept that. So, even if Z.H. is wrong about exactly how it all took place in the basement and who was present at what specific moment in time, in my view, there is no other way that P.H. could have received the injuries she did.
221One last matter I must address on the February 26^th^ incident is Z.H.’s testimony that she secretly recorded her father beating P.H. The police seized the phone when they searched K.H.’s home on March 5, 2020. The police could not completely crack the phone but what was recovered was of no evidentiary value. I do not find this lack of confirmatory evidence significant. The police found the phone in the kitchen and not where Z.H. testified that she left it, in the LCBO bag in the closet of her room. It is true that Z.H. could be mistaken about recording P.H.’s screams. When I say mistaken, I do not mean that she misremembers it. Rather, she may have tried to record it but failed to do so. There is also the possibility the recording is still on the phone but the police were not able to access it. Finally, there is the possibility that K.H. deleted the recording, as Z.H. believes. Prior to the search, K.H. had been arrested and released on bail. He may have had access to his daughters’ phones; even if he did not know the password to Z.H.’s phone, it is possible that J.H. may have had the password and K.H. may have convinced her to give it to him.
222Overall, I find that this evidence is neutral. Not finding the recording on the phone does not undermine Z.H.’s testimony about secretly recording the beating on the phone. This evidence is inherently plausible, she was not impeached on it, and it is unlikely she just made it up, especially given her lack of sophistication. She would know it could easily be disproven if it was not true.
223I accept Z.H.’s testimony about what happened on February 26^th^. This evidence is relevant to the assault charges against J.H. and P.H.
224Then there is Z.H.’s evidence regarding K.H. hitting her with a belt that left a scar on her stomach. At trial, Z.H. identified the belt that was in the basement that her father used to hit her with. She testified that her father caused the scar on her stomach. Z.H. testified that K.H. had only hit her the one time that caused the scar, because he was upset that Z.H. had told her mom about hitting the others with the belt and other things. K.H. told her that what happened in the house should stay in the house. In deciding this issue, I next turn to the medical evidence.
3. Z.H.’s Injuries and Dr. Kadar’s Opinion
225Dr. Kadar did not make any significant findings in his examination of Z.H. except a small 2 cm linear hyper-pigmented mark (darker skin) on her lower abdomen that looked like a scar. He could not date the mark. Nor could he opine about the mechanism of such an isolated injury. Dr. Kadar said it was compatible with a strike from a straight-edged object like a belt but was not unique or exclusive to that.
226I did not find his opinion on this mark very probative. In my opinion, his opinion does not add much more than the fact that Z.H. had a mark on her stomach.
227That said, the mark itself is some confirmation of Z.H.’s testimony.
4. Z.H.’s Statement to the Police During the Sexual Assault Investigation
228Z.H. was cross-examined at length about the alleged sexual assault committed upon her and the statement she gave about that to the police. Z.H. was asked if her mom, Kevin, and two other people did mean things to her in the living room. She said she could not remember. She was asked about telling the police in July and August of 2019 that her mom had touched her in ways she did not want. She was reluctant to answer. She could not recall that happening or what she had said to the police. When asked if she lied about Kevin and her mom doing these things, she testified that she was sure that told the police the truth. She testified that they did mean things to her and then they stopped. However, she had forgotten what those things were. She agreed she went to the hospital with her father, had a medical procedure, and the doctors retrieved a black object from inside her. She also recalled the incident where her grandmother had told her mother to stop. She agreed that Kevin said if Z.H. told her father, she would be locked in her room and thrown off the balcony.
229Z.H. was also cross-examined about other things she told the police in that statement. She was asked whether she told the police that her mother was selling drugs, and she would not answer the question. She eventually agreed under cross-examination that she did tell the police that she saw people selling drugs in her mother’s house and the park. She agreed that she told the police that her mother was trying to win in court against her dad. She knew that meant she would live with her mom more. She was asked whether she was telling the truth when she told the police about her mother being mean, and she said yes.
230As I have previously concluded with respect to P.H. and J.H., I find the police statement pertaining to the sexual assault and Z.H.’s testimony about it to be of little weight. Again, Z.H. did not recant her testimony. The fact that the police decided not to lay charges does not demonstrate that the allegations Z.H. made against her mother or Kevin were demonstrably false.
231Further, as I said before, this evidence does not substantially advance the defence theory that the allegations against K.H. are a result of influence or collusion — even inadvertent collusion.
J. CONCLUSION ON COUNTS 2, 3, AND 4: THE ASSAULT WITH A WEAPON AND ASSAULT CAUSING BODILY HARM AGAINST J.H. AND P.H.
232Count 2 alleges K.H. committed an assault on J.H. using a weapon, namely a wire or cable. Count 3 alleges K.H. committed an assault on P.H. using a weapon, namely a wire or cable. Count 4 alleges K.H. committed an assault on P.H. causing her bodily harm. These charges relate to the incident that happened in the basement on or about February 26, 2020.
233There are some inconsistencies between the children’s evidence. There are also internal inconsistencies within their evidence and inconsistencies between the evidence they gave at trial and their police statements; for example, whether a sibling may have been present at the time of the abuse, whether a belt or a wire was used, and the sequence of the beatings. Some inconsistencies are minor. Others are readily explainable by the young age of the complainants, both at the time of the events and when testifying. The passage of time has also eroded the peripheral details of some of the memories.
234I do not expect children of this age to give evidence of the same cohesive or detailed quality as adults. The common-sense approach recognizes that children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding, and ability to communicate: B.(G.), at para. 48; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 24-26, 31; R. v. P.S., 2019 ONCA 637 at paras. 23-26. But when their evidence is considered in its totality, I find the children tell a consistent story. The core of the story remains the same: that on or about February 26, 2020, their father got upset about missing money, the children were in the basement, and he assaulted them all either in anger, as a way to get at the truth, or as punishment.
235Put simply, J.H., P.H., and Z.H. confirm each other’s testimony about the assaults.
236The defence submits that collusion undermines the weight of the children’s evidence. They have discussed their evidence prior to offering it to the authorities and to the court. Mere exposure to each other’s evidence could have unconsciously influenced their account even if there was no plan to collude or nefarious intent.
237I do not accept this submission.
238I have already set out why I find that N.A. did not directly influence the children in coming up with false allegations against K.H.
239When it comes to the children colluding amongst themselves, I appreciate that while they were with K.H. earlier that week, the children did have the opportunity to discuss the matter before ultimately disclosing it to N.A. on Friday. However, I reject that collusion happened then. It does not make sense that the children would come up with such serious false allegations against their father. Doing chores they did not like, living in a stricter household, or even wanting to live with their mother are not sensible reasons why children of this age and in these circumstances would do something like this. There is no onus on the defence to show a motive to fabricate. I just point this out in rejecting the defence’s submissions. Moreover, if K.H. is to be believed, his home was a good environment for the children and they would have no reason to make up false allegations. I could also tell that Z.H. and J.H. still have ambivalent feelings about their father.
240The defence theory of collusion and influence goes nowhere in explaining the injuries suffered by P.H. and J.H. I cannot conceive of a situation where P.H. would be harmed in the fashion that she was to achieve such a ruse. If the children wanted to make up false allegations against their father, they could easily have done so without suffering injury.
241Additionally, the core consistency of their allegations belies any collusion, advertent or inadvertent; it is highly unlikely that children of this age could maintain such core consistency. It must be recalled that P.H. was only six years old at the time. Moreover, the inconsistencies between the peripheral details also support my finding that collusion did not take place. Had they colluded, it is more likely they would have told the exact same, rehearsed story.
242I appreciate the defence theory about the sexual assault allegations being another example of such collusion. However, as I pointed out, there are stark differences between that case and this case. In addition, based upon the evidence that I have, I am not at all certain that the children’s perception of what occurred to them during the incidents has been shown to be false.
243Overall, any influence or shaping of recollections that may have occurred does not cause me any doubt or hesitation in believing the children about what happened on February 26^th^.
244The police statements given by the children on February 29^th^ are good evidence. The statements show no signs of manipulation, scripting, or collusion. The disclosure to N.A. had just happened the night before. The statements of the children are clear, consistent, and straightforward.
245Then there is the objective evidence of the injuries that strongly supports the evidence of the children. Any inconsistencies by the children in accounting for individual markings or injuries do not lessen the strength of this evidence. The injuries are entirely consistent with the accounts the children gave.
246There is also other, though less probative, confirmatory evidence. K.H.’s home was searched by the police on March 5, 2020. In the basement, belts were found hanging and white cables were strung about. This supports the children’s evidence.
247K.H. also made partial admissions that track the narrative told by his children. Although he said the event happened earlier, he agreed that he got upset at one point when he had to pay a taxi driver and his money went missing. I have no doubt that money was tight in the household. I can easily envision K.H. getting upset because one of his children stole from him. Furthermore, I can see any parent getting upset if their children lied about something like this. The one thing that is missing from K.H.’s admission is the beating. But in my opinion, it is a small step to go from what K.H. admitted happened to what the children said happened.
248I accept the evidence of P.H., J.H., and Z.H. about what happened on or about February 26, 2020. The Crown has proven beyond a reasonable doubt that K.H. assaulted P.H. and J.H. with the wire or cable. The Crown has proven beyond a reasonable doubt that K.H. intended to use the object as a weapon. The evidence on this essential element is overwhelming. Finally, I find that the Crown has proven beyond a reasonable doubt that P.H. suffered bodily harm as defined under s. 2 of the Criminal Code. The evidence on this essential element is also overwhelming.
249I find that K.H. committed these assaults at least initially for the purpose of corrective discipline of his children. However, K.H. cannot avail himself of the defence under s. 43 of the Criminal Code. The Crown has proven beyond a reasonable doubt the force used was unreasonable given that an object, a wire or cable, was used. Moreover, I find that with respect to P.H., the number of blows, their severity, and their location prove beyond a reasonable doubt that the blows, though initially intended for corrective purposes, were also delivered due to K.H.’s frustration and a loss of temper: Canadian Foundation for Children, Youth, and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76.
250There will be findings of guilt on counts 2, 3, and 4.
K. CONCLUSION ON COUNT 1: ASSAULT ON Z.H.
251Count 1 alleges that at some point between January 1, 2018 and June 30, 2019, K.H. committed an assault on Z.H. using a weapon, namely a belt.
252I accept the evidence of Z.H. that she was struck by K.H. with a belt that left a scar on her abdomen. As indicated, Z.H. was credible on this. She was not shaken in cross-examination. The circumstances that she described are plausible.
253K.H.’s rejected testimony does not leave me with a reasonable doubt.
254While other potential causes of the mark on Z.H.’s abdomen could not be ruled out, the mark was consistent with such an assault and is some confirmation of her testimony.
255I am satisfied beyond a reasonable doubt that all the essential elements of this offence have been proven by the Crown.
256There will be a finding of guilt on count 1.
L. CONCLUSION ON COUNT 5: FORCIBLE CONFINEMENT OF P.H.
257I have a reasonable doubt when it comes to this charge. There are several reasons for this.
258I am concerned that P.H. claimed K.H. hung her from the basement ceiling months after N.A. and the children initially went to the police on February 29, 2020. P.H.’s second recorded statement to the police was on June 9, 2020. During the intervening time, N.A. had custody of P.H., and N.A. likely negatively influenced P.H. about K.H., even if unintentionally. Certainly, N.A. was open and honest about her scathing views of K.H. when she testified.
259While I appreciate that P.H. initially said to the police that she was bound or held down by her ankles and had a sock put into her mouth, the change in her allegations in June where she now remembered being tied up by her ankles from the ceiling is quite dramatic.
260Moreover, in examination-in-chief, when first asked if her dad hung her up by a wire and beat her with a wire, P.H. could not recall telling the police that. When asked again if she recalled her dad doing this, she did not. She further could not recall the diagram that she drew for D.C. Gordon about being hung up. When asked again, she did remember, but she testified that she was on the bed. As she testified, my sense was that she really could not recall this at all. Giving full latitude to her age and stage of development, I am not convinced that her testimony about this now is an accurate recollection.
261I also find what P.H. describes as being hung from the ceiling to be implausible. It would be physically difficult to do.
262Proof of this count depends entirely on acceptance of P.H.’s testimony. These incidents have not been confirmed by the other children. There is no specific evidence of injuries that relate to this charge.
263Finally, K.H. has denied doing this. While I did not accept his testimony, K.H. was not specifically impeached on this part of his denial.
264While I find P.H. to be overall a credible witness and it could well be that she was so hung or confined by K.H., there remains a reasonable doubt. This reasonable doubt comes from the factors I have noted and from K.H.’s unaccepted evidence.
265K.H. will be acquitted of the final count and it is dismissed.
JUSTICE S. NAKATSURU
Released: December 17, 2021
COURT FILE NO.: CR-20-40000341
DATE: 20211217
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
K. H.
Defendant
REASONS FOR JUDGMENT
JUSTICE S. NAKATSURU
Released: December 17, 2021
Footnotes
- Other photographs of injuries were presented by K.H. in his testimony that he said were caused by others. I will also say this about the photos found in Exhibit 24. Many of them were not shown to the children. Thus, the children did not say in their testimony who caused the injuries. K.H. testifying about what his children told him about the injuries is not probative of who caused them or how because it is hearsay.
- In re-examination, K.H. confirmed that it happened earlier in February.
- Although N.A. had initially stated that P.H. told her about this on February 28, 2020, later in her testimony she admitted that the disclosure had actually occurred months later, in June 2020.
- The wires strung around the basement are white or off-white as shown in the photos taken by the police.